New Jersey Case Testing the Limits of Strip-Searches in Local Jails Goes to the Supreme Court

The U.S. Supreme Court is currently reviewing the constitutionality of the strip-search policies used at two New Jersey jails-the Burlington County Jail and the Essex County Correctional Facility-which required all detainees to be strip-searched during the intake process, including detainees arrested for only minor, non-criminal offenses.

The case,
Florence v. Bd. of Chosen Freeholders of Burlington County, will require the Court to balance detainees' privacy rights under the Fourth Amendment against correctional facilities' interests in preventing new inmates from smuggling in drugs, weapons, and other contraband. A decision is expected sometime in the spring or early summer of 2012.

Florence's factual background

The plaintiff in the case, Albert Florence, was riding in his wife's car when she was pulled over for a traffic stop in Burlington County, New Jersey. The police officer noticed that there was an outstanding warrant for Florence's arrest based on his failure to pay a fine, and even though Florence contested the warrant's validity, he was arrested and transported to the Burlington County Jail. The charges were eventually dismissed, but Florence was detained at the Burlington County Jail and the Essex County Correctional Facility for a week before being released. During this period, he was subjected to intrusive strip-searches and visual body-cavity searches at each location, requiring him to undress completely in front of correctional officers and squat, cough, and lift his genitals for them. Following his release, Florence filed a lawsuit claiming that these strip-searches were unconstitutional because he was arrested and detained for only a minor, non-criminal offense and there was no reason to suspect him of carrying contraband.

The Fourth Amendment guarantees the right to be free from
unreasonable searches, but determining whether a particular search method is "reasonable," and therefore constitutional, can be notoriously difficult because it requires the courts to weigh individuals' privacy rights against the importance of the governmental interest served by the search. In cases involving prison searches, detainees' privacy expectations are necessarily curtailed as a result of their incarceration and the courts must take this diminished privacy expectation into account when deciding whether a search has violated the Fourth Amendment.

The leading Supreme Court case on inmate strip-searches is
Bell v. Wolfish, which was decided in 1976 and upheld a policy requiring all detainees to be strip-searched after receiving "contact visits" from outsiders. The Court emphasized that while inmates have limited Fourth Amendment privacy rights, the interests of prison administrators should generally be accorded more weight in unreasonable search challenges. After finding that the "contact visit" strip-searches were reasonable because they were intended to prevent visitors from smuggling contraband into the correctional facility, the Court held that the interest in maintaining prison safety outweighed the intrusion into detainees' personal privacy.

Intake strip-searches and the reasonable suspicion requirement

After
Bell v. Wolfish was decided, ten different circuit courts held that intake strip-searches of individuals arrested for minor offenses were unconstitutional unless they were supported by some reasonable suspicion that the detainee was hiding contraband. The general reasoning behind these cases was that the inmates in
Bell v. Wolfish were searched after being allowed to interact with visitors during meetings that were pre-planned and offered easy opportunities for passing contraband. Detainees who were strip-searched during the intake process, on the other hand, had usually been arrested unexpectedly, which limited their ability to arrange for smuggling ahead of time, and the detainees who were charged with only minor offenses presented especially low safety risks. Under these circumstances, the courts found that the extreme privacy intrusion caused by strip-searches and body-cavity searches outweighed the prisons' minimal interests in searching low-risk detainees unless they had reasonable suspicions for doing so.

Over the past decade, however, two circuit courts overruled their previous decisions requiring a reasonable suspicion for intake strip-searches of detainees arrested for minor violations. These courts concluded that detainees entering correctional facilities created just as much of a security threat as detainees returning from visits with outsiders because "an inmate's initial entry into a detention facility" essentially followed "one big and prolonged contact visit with the outside world." Under
Bell v. Wolfish, accordingly, these courts held that the safety purposes of intake strip-searches outweighed detainees' Fourth Amendment privacy rights, and so there was no need to show reasonable suspicion. And because
Bell v. Wolfish made no distinction between detainees based on the severity of their charges, these courts also concluded that intake strip-searches were constitutional even as applied to detainees who were arrested for only minor offenses.

The lower courts' decisions in
Florence

The federal district court agreed with Florence's position and found that "blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional." The Third Circuit reversed, however, relying on the more recent cases that upheld intake strip-search requirements regardless of the crime charged and without any individualized suspicion requirement.

In reaching its conclusion, the court emphasized that
Bell v. Wolfish required the courts to defer to the safety and administrative interests of corrections officials. The Third Circuit also found that the jails had a substantial interest in preventing smuggling upon detainees' entry into the system because inmates could coerce or cajole outsiders into committing minor offenses for the purpose of smuggling in drugs or weapons just as they could arrange for smuggling during contact visits. The court rejected Florence's argument that the jails needed prior evidence of smuggling problems, finding that under
Bell v. Wolfish, correctional facilities could take affirmative steps to prevent smuggling even without evidence demonstrating the need for intake strip-searches. The court similarly rejected Florence's contention that the jails should be required to use less intrusive search methods-namely, body scanners-because the record supported the jails' contention that strip-searches were more effective. Finally, the court also noted that the universal strip-search requirement helped to prevent discrimination by correctional officers who might otherwise abuse the reasonable suspicion requirement by selectively imposing strip-searches based on subjective characteristics such as detainees' appearance.

One of the Third Circuit judges dissented from the majority's ruling, however, stating that "the majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail." The dissenting judge also questioned the majority's reasoning regarding the need for intake strip-searches as an anti-smuggling measure, writing that "one might doubt that individuals would deliberately commit minor offenses... and then secrete contraband on their person, all in the hope that they will, at some future moment, be arrested and taken to jail to make their illicit deliveries."

How might the Supreme Court rule in
Florence?

The only issue posed in Florence's appeal to the Supreme Court is "whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances." Deciding this issue will require the Court to rule on a number of subsidiary questions, however, and it's unlikely that the Court will provide any categorical, bright-line tests to determine when detainee strip-searches are constitutional.

Some of the questions the Court may focus on include whether intake strip-searches address the same security threats as the contact visit strip-searches involved in
Bell v. Wolfish, and whether certain types of strip-searches (such as those conducted from several feet away) are more reasonable than others (such as those involving body-cavity searches). Another difficult issue that's likely to be addressed is whether the "minor
offense" distinction is appropriate for determining when there must be reasonable suspicion, or whether it makes more sense to apply the same standard to all detainee strip-searches. The Court may also be influenced by the nearly complete lack of empirical evidence suggesting that smuggling contraband into jails is actually a substantial problem or that intake strip-searches are needed to prevent and deter smuggling.

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